Commentary

The Judiciary Committee as Political Killer

September 17, 2002|DOUGLAS W. KMIEC | Douglas W. Kmiec is dean of the Catholic University School of Law and a senior policy fellow at Pepperdine University.

While the nation has been properly focused on the war on terrorism, the Senate Judiciary Committee has continued its all-out offensive against President Bush's judicial nominees. The tactical strategy of the Democratic committee majority, led by Sen. Patrick J. Leahy (D-Vt.), is multi-headed, ranging from not giving the president's candidates a hearing at all to waiting a year or more to do so, or, in its most aggressive form, to rejecting nominees by committee--literally, substituting the 10-member Democratic committee majority for the deliberations of the full Senate.

This week, the nomination of Michael McConnell, one of the nation's most capable constitutional scholars, will be before the committee. The professor has had a distinguished career, representing the United States in the solicitor general's office, serving in the executive branch and teaching at the University of Chicago and the University of Utah.

It is not an overstatement to say that McConnell's arguments before the U.S. Supreme Court have reestablished the principle that discrimination against citizens on the basis of religion should have no resonance in either constitutional law or practice.

Had the system been working as the framers envisaged, McConnell would have been approved by unanimous consent months ago. More than 300 law deans and professors across the ideological spectrum have written in his behalf, characterizing his work as, for example, the product of "care, thoroughness and fairness to opposing viewpoints." Yet, despite his scholarly record and ideal judicial temperament, McConnell's nomination has been languishing for more than a year.

Now with the hearing imminent, McConnell's nomination is being targeted for defeat by the usual single-issue pressure groups.

McConnell's thoughtful academic commentary is being ripped from context and reduced to mean and virtually meaningless caricature. Such well-funded political campaigns are the regrettable, but inevitable, corollary of the Senate distorting its constitutional duty into one of political compatibility rather than professional capability.

The Senate's role in advice and consent is to discern integrity and competence, not to condition appointment upon a judge changing his judicial philosophy to one that coincides with the dominant perspectives on the committee. Both political parties have forgotten this precept over time. Consequently, there is now a wholesale disregard of the relationship between an independent judiciary and the rule of law.

Fueling this disregard is the Judiciary Committee's more recent usurpation of the advice-and-consent authority that by rights belongs to the full Senate. The founders intended the whole body to act to get the benefit of representation and deliberation. This has been our historical practice with very few exceptions. No Supreme Court nominee has ever been formally rejected in the Judiciary Committee alone, and all but four federal appellate nominees have been brought to the Senate floor as well.

More than 10% of the seats on the federal bench are vacant. The Administrative Office of U.S. Courts has categorized 32 of these vacancies as emergencies because of the backlog they are causing to case dockets. The American Bar Assn. has decried the protracted delays. Political litmus tests have no place before the Senate Judiciary Committee. Under our Constitution, it is expected that the president nominates judges. The Senate's power of advice and consent is not about undoing those choices.

Rather, as Alexander Hamilton explained in the Federalist Papers, "the necessity of [the whole Senate's] concurrence would have a powerful, though, in general a silent operation." Since the president would know that his choices could be rejected, it "would tend greatly to prevent the appointment of unfit characters."

There is nothing unfit about McConnell. Unless soon righted, however, the fitness of the confirmation process remains very much in doubt.